Explainer: What happens now for John Hlophe?

The Judicial Conduct Tribunal at the weekend announced it had unanimously found Western Cape judge president John Hlophe guilty of gross misconduct and improperly attempting to influence two Constitutional Court (ConCourt) judges.

This stemmed from a complaint lodged by 11 ConCourt judges against Hlophe more than 12 years ago after justices Chris Jafta and Bess Nkabinde claimed he had approached them separately in their chambers to try to influence them to rule in favour of former president Jacob Zuma and French arms company Thales in a case relating to the validity of search and seizures in the arms deal investigation.

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The tribunal’s report was submitted to the chairperson of the Judicial Services Commission (JSC), who is expected to determine judge Hlophe’s fate.

The appointment of judicial officers in South Africa is provided for in section 174 of the Constitution and the JSC is responsible for conducting interviews of fit and proper, and qualified candidates to stand for judicial office.

The JSC Act also outlines the code of judicial conduct for judges that serve as a standard for them to adhere to, such as upholding the integrity of the judiciary and acting honourably and in a manner befitting judicial office.

Any breach of the code that amounts to misconduct could result in a judge facing disciplinary action in terms of section 14 of the JSC Act.

When it comes to the removal of a judge, section 177 of the Constitution deals with this and a judge can be impeached on grounds of incapacity, gross incompetence or gross misconduct.

According to the JSC Act, the report on Hlophe will be referred to the JSC to decide whether the criteria for impeachment are met. If the commission agrees with the finding of the Judicial Conduct Tribunal that Hlophe is guilty of gross misconduct, the matter would be referred to the National Assembly for a vote.

In the National Assembly, two-thirds of MPs must vote in favour of impeachment, which would result in a judge being formally removed from office by the president.

If the House does not vote in favour of impeachment, the judge could be sanctioned through punitive measures that include an order for an apology, a reprimand, counselling or training.

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